Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions Flashcards
The issue in a nutshell with TK, TCE and etc. ?
Indigenous peoples, local communities and many countries reject a “public domain” status of TK and TCEs and argue that this opens them up to unwanted misappropriation and misuse.
What the difference between public domain and publicly available >
the term “public domain” and publicly available is different for example, content on the Internet may be publicly available but not in the public domain form an IP perspective.
§
United Nations
Declaration on the Rights of Indigenous
Peoples.
What is TK ?
TK is a living body of knowledge that is developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. In a few words, TK is understood as: • knowledge, know-how, skills, innovations or practices; • that are passed between generations; • in a traditional context; and • that form part of the traditional lifestyle of indigenous and local communities who act as their guardian or custodian.
TK can be, for example, agricultural, environmental or medicinal knowledge, or knowledge associated with GRs. Examples include, among thousands of others: • knowledge about traditional medicines; • traditional hunting or fishing techniques; • knowledge about animal migration patterns or water management.
What is TCEs?
Traditional Cultural Expression. TCEs are, succinctly, the forms in which
traditional culture is expressed. They can
be, for example, dances, songs, handicraft,
designs, ceremonies, tales or many other
artistic or cultural expressions.
TCEs are seen as integral to the cultural
and social identities and heritage of indigenous
and local communities, reflecting
core values and beliefs.
TCEs are handed down from one generation
to another, and are maintained,
used or developed by their holders. They
are constantly evolving, developing and
being recreated.
TCEs may be either tangible, intangible, or, most usually, a combination of the two. Indeed, in any material object, there is often a symbolic or religious element from which it cannot be separated. An example would be a woven rug (a tangible expression) that expresses elements of a traditional story (an intangible expression).
Although “expressions of folklore” was
the term used most commonly in international
discussions and is found in
many national laws, some communities
have expressed reservations about the
negative connotations associated with
the word “folklore.” WIPO nowadays uses
the term “traditional cultural expressions”
(or simply “TCEs”). Where it is used, “expressions
of folklore” is understood as a
synonym of TCEs.
Give an example of TCEs?
Verbal expressions: stories, tales, poetry,
riddles, signs, elements of languages,
such as names, words, symbols and
indications, etc.
Musical expressions: songs and instrumental
music
Expressions by actions: dances, plays,
artistic forms of rituals, etc.; whether or
not reduced to a material form
Tangible expressions: drawings, paintings,
carvings, jewelry, metalware, textiles,
designs, carpets, sculptures, pottery,
terracotta, crafts, mosaic, needlework,
basket weaving, woodwork, costumes;
musical instruments, architectural forms,
etc.
What does it mean Traditional?
what makes knowledge or cultural expressions traditional is not their antiquity, much TK and many TCEs are not ancient or inert, but a vital, dynamic part of the lives of many communities today.
a traditional link with a community. For example, the essential characteristics of “traditional” creations are that they contain motifes, a style or other items that are characteristic of and identify a tradition and a commutity that still bears and practices it. They are often regarded as “belonging” to the community
What is GR?
Genetic Resources, GRs are defined in the Convention on
Biological Diversity (CBD). In short, they
are parts of biological materials that:
• contain genetic information of value;
and
• are capable of reproducing or being
reproduced.
Examples include material of plant, animal, or microbial origin, such as medicinal plants, agricultural crops and animal breeds. Some TK is closely associated with GRs: through the utilization and conservation of the resource, often over generations, and through their common use in modern scientific research, because TK often provides researchers with a lead to isolate valuable active compounds within GRs.
Who are the Holders of
Traditional Knowledge
and Traditional Cultural
Expressions?
One central issue in the debate over the
protection of TK and TCEs is the identity
of their owners, bearers or custodians.
It could be that more than one community qualifies for protection of their TK/TCEs, including communities which share the same or similar TK/TCEs in different countries.
What does “Protection”
Mean?
“Protection” can mean different things,
depending on the context in which the
term is used, but WIPO is concerned
with a very specific understanding of the
term: the use of IP tools and principles to
prevent unauthorized or inappropriate
uses of TK/TCEs by third parties.
IP protection can entail recognizing and
exercising exclusive rights, i.e., excluding
others from carrying out certain acts. IP
protection can also include non-proprietary
forms of protection like moral rights,
equitable compensation schemes and
protection against unfair competition
Summary
In summary, IP laws typically establish: • exclusive property rights in creations and innovations in order to: • grant control over their exploitation, particularly commercial exploitation; • provide incentives for further creativity; • other forms of protection, for example: • moral rights protection; • equitable compensation; and • protection against unfair competition.
Protection is different from “preservation”
or “safeguarding,” which are the identification,
documentation, transmission,
revitalization and promotion of knowledge
and cultural heritage in order to
ensure its maintenance or viability. The
objective, in that case, is to make sure
that the TK or TCEs do not disappear,
are not lost or degraded, and to ensure
that they are maintained and promoted.
What are two approaches to IP protection?
These two approaches—
generally referred to as “positive” and
“defensive” protection—can be undertaken
together in a complementary way.
What is positive protection?
“positive protection”— the IP system is designed to enable holders, if they so wish, to acquire and assert IP rights in their TK and TCEs. This can allow them to prevent unwanted, unauthorized or inappropriate uses by third parties (including culturally offensive or demeaning use) and/or to exploit TK/ TCEs commercially, for example through the granting of licenses, as a contribution to their economic development. In brief, positive protection is the granting of rights that empower communities to promote their TK/TCEs, control their uses by third parties and benefit from their commercial exploitation.
What is defensive protection?
“defensive protection”— is designed to prevent the illegitimate acquisition or maintaining of IP rights by third parties. Stated otherwise, defensive protection aims to stop people outside the community from acquiring IP rights over TK and TCEs. India, for example, has compiled a searchable database of traditional medical knowledge that can be used as evidence of prior art by patent examiners when assessing patent applications. Defensive strategies might also be used to protect sacred cultural manifestations, such as sacred symbols or words, from being registered as trademarks.
how to protect a Genetic Resources?
GRs are subject to access and benefit-sharing regulations, in particular within the international frameworks defined by the CBD and its Nagoya Protocol, as well as by the International Treaty on Genetic Resources for Food and Agriculture of the United Nations Food and Agriculture Organization.
Furthermore, GRs as encountered in
nature are not IP. They are not creations
of the human mind and thus they cannot
be directly protected as IP. Therefore,
WIPO is not involved in the regulation of
access to GRs or their direct “protection”
as such. However, inventions based on or
developed using GRs (associated with TK
or not) may be patentable or protected by
plant breeders’ rights.
What is the Objective of
Protection?
Stakeholders have expressed a variety of policy objectives underlying the protection of TK and TCEs, including: • Wealth creation, trading opportunities and sustainable economic development, including promotion of equitable benefitsharing from use of TK/TCEs; • Preservation, promotion and development of TK/TCEs; • Prevention and repression of misappropriation and unauthorized exploitation, illicit use and abuse, as well as other unfair and inequitable uses of TK/TCEs; • Protection of tradition-based creativity and innovation; • Recognition of value of and promotion of respect for TK/ TCEs and the communities that preserve them; including prevention of insulting, derogatory and/or culturally and spiritually offensive uses; • Safeguarding of the cultural identity and values of communities; • Empowerment of TK/TCEs holders; • Prevention of false and misleading claims to authenticity and origin; prevention of third party failure to acknowledge the source; • Promotion of cultural diversity
Cultural Heritage and
Economic Development
While the artistic heritage of a community
plays significant social, spiritual and
cultural roles, it can also play a role in economic
development. The use of TCEs as
a source of contemporary creativity can
lead to the establishment of community
enterprises, local job creation, skills development,
appropriate tourism, and foreign
earnings from community products.
IP can enable communities to commercialize
their tradition-based creations,
should they wish to do so, and to exclude
free-riding competitors. Communities
may thus use their IP to exercise control
over how their TCEs are used, and to
defend against insensitive and degrading
use of traditional expressions.
The marketing of artisanal products also
represents a way for communities to
strengthen their cultural identity and
contribute to cultural diversity. IP can
assist in differentiating artisanal products
and handicrafts, certifying their origin,
or by combating the passing off of fake
products as “authentic.” TCEs are also a source of inspiration
for creative industries, such as the entertainment,
fashion, publishing, crafts
and designs industries. Many businesses
today create wealth using the forms and
materials of traditional cultures. IP could
assist communities in putting a commercial
value on their TCEs and entering into
commercial relations, notably through
the use of IP licenses and other kinds
of legal agreements.
